Surprise Heirs: Illegitimacy, Patrimonial Rights, and Legal Nationalism in Luso-Brazilian Inheritance, 1750-1821 - Vol. 1

By Linda Lewin | Go to book overview

Conclusion
A Pombaline Legal Tradition for a Liberal Era

[Paschoal José de Mello Freire] reduced the chaos of National
Legislation to a regular plane and easy comprehension …. In
possession of the vast ideas of the marquis of Pombal, he applied
philosophy to jurisprudence … and interpreted the ancient laws
in the spirit of the century in which he was living and in which
they had to be executed. His writings introduced new intellectual
tastes and created a new school of National Jurisprudence.

Professor Antonio Joaquim Ribas, 1865 1

Writing in the late 1860s, when Brazilian jurisprudence had again begun to privilege Roman law, Candido Mendes de Almeida emphasized that Mello Freire had been “an eminently innovative spirit.” He lamented the lost opportunity for national codification in the eighteenth century and observed that “had Mello Freire been given a free hand, then he would have made of his epoch a tabula rasa” for replacing Portugal's legal constitution. 2 In Brazil, Mello Freire's legacy endured intact until challenged in the late 1850s by the genius of Teixeira de Freitas, the jurist who first pushed the pendulum of juridical reinterpretation in the old direction of Roman law. Mello Freire's lasting contribution to Luso-Brazilian jurisprudence was to modernize Portugal's eclectic and conflicting corpus of laws, what in his own time had become an obstacle to modern state building.

Short of replacing the Ordenações with a modern civil code, the Institutiones juris civilis lusitani provided the next best alternative. They eliminated irrelevant sources of law and reconciled the essence of a national legal tradition, where formerly there had been a veritable jumble of sources. The codifications of Portuguese law known generically as the Ordenações do Reino had successively carried forward many limitations embedded in the initial Ordenações Afonsinas, for the latter had relied on medieval compilations of royal law, in addition to Roman and canon law or custom. Technically an early modern national code, the Ordenações Filipinas remained faithful to the late

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